Citation Nr: 1231089
Decision Date: 09/11/12 Archive Date: 09/19/12
DOCKET NO. 11-03 255 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected residuals of pulmonary tuberculosis (PTB).
2. Entitlement to service connection for hypertension, to include as secondary to service-connected residuals of PTB.
3. Entitlement to service connection for colon cancer, to include as secondary to service-connected residuals of PTB.
4. Entitlement to service connection for a prostate disability (to include benign prostate hypertrophy (BPH), to include as secondary to service-connected residuals of PTB.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jarrette A. Marley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1943 to November 1946.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In his January 2011 VA Form 9, the Veteran requested a hearing before a member of the Board; in March 2011 correspondence, he withdrew the request.
During the pendency of this appeal, a January 2012 rating decision granted service connection for residuals of PTB, 100 percent, effective November 19, 2007. Accordingly, this matter is no longer (as he had perfected an appeal for service connection for PTB) before the Board.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
While the Board regrets additional delay as to the Veteran's appeal, the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to such claim. 38 C.F.R. § 3.159.
Regarding the Veteran's claim for service connection for COPD, the Board notes that postservice treatment records, including an April 2005 VA treatment record that diagnosed him with shortness of breath/COPD, a November 2009 chest x-ray that found hyperaeration compatible with COPD, and December 2011 VA examination report wherein the examiner opined the Veteran may have mild COPD, show that the Veteran suffers from COPD.
Regarding the Veteran's claim for service connection for hypertension, postservice treatment records show that he has such disability, and that he currently takes medication for treatment of such disability.
Regarding the Veteran's claim for service connection for colon cancer, postservice evidence indicates that in approximately 1998, the Veteran underwent a partial colectomy due to colon cancer. In April 2010 correspondence, the Veteran reported that the physician that performed the surgery was retired, and that such treatment records were no longer available. Notably, a January 2011 private treatment pathology report found that the "scant available submucosa at the base of the lesion shows no distinct evidence of invasion. A small fragment of hyperplastic mucosal change is also present." Hence, while it is not clear, the postservice evidence suggests that the Veteran had, and may have, colon cancer.
Regarding the Veteran's claim for service connection for a prostate disability, to include BPH, postservice evidence includes a June 2001 VA treatment record that provided a diagnosis of BPH, an October 2005 VA treatment record noting a history of BPH, and a March 2010 prescription for Finasteride for BPH. Hence, the evidence suggests that the Veteran had, and may have, BPH.
As noted above, during the pendency of the Veteran's appeal as to the matters addressed herein, in January 2012, the Veteran was awarded service connection for residuals of PTB. In July 2012 correspondence, the Veteran's representative raised the theory that the matters on appeal were secondary to the service-connected residuals of PTB, and that there has been no medical opinion addressing such.
The criteria for establishing secondary service connection were revised, effective October 10, 2006. Under the revised 38 C.F.R. § 3.310(b) criteria, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury, however, unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule of Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran was not provided adequate notice of the criteria for substantiating a secondary service connection claim; such notice should be provided on remand.
In addition, governing regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this is a "low threshold" requirement. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
The evidence of record shows that the Veteran has, or at least had at some point postservice, COPD, hypertension, colon cancer, and BPH, and the record also shows that he has established service connection for residuals of PTB. Under the "low threshold" requirement in McLendon, the Board finds that a VA examination is necessary.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. The RO should send the Veteran appropriate VCAA notice on his claims of service connection for COPD, hypertension, colon cancer, and a prostate disability (to include BPH), including as secondary to his service-connected residuals of PTB. See 38 C.F.R. § 3.310. A copy of the notice letter, and any reply, should be included in the claims file.
2. The RO should also secure for the record copies of the complete updated clinical records of all VA treatment or evaluation the Veteran has received for the disabilities on appeal since November 2010.
3. The RO should then arrange for the appropriate VA examination or examinations of the Veteran to determine the nature and likely etiology of the claimed COPD, hypertension, colon cancer, and prostate disability, including BPH, and specifically whether any claimed disability is related to his service-connected residuals of PTB. The Veteran's claims file must be reviewed in conjunction with the examination, any indicated tests or studies must be completed, and findings must be described in detail. Based on review of the record and examination of the Veteran, the examiner must offer an opinion that responds to the following:
1. COPD:
(a) Please identify (by clinical diagnosis) each respiratory disability entity found. Specifically, does the Veteran have COPD?
(b) As to each diagnosed respiratory disability, please opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability is related to the Veteran's service?
(c) The examiner should also opine whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of PTB caused or aggravated (permanently worsened) any respiratory disability(ies) diagnosed.
If the examiner concludes that the Veteran's service-connected residuals of PTB did not cause, but aggravated, a respiratory disability(ies), the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation by the residuals of PTB and the level of severity existing after the aggravation occurred.
2. HYPERTENSION:
(a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is related to his service?
(b) The examiner should also opine whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of PTB caused or aggravated (permanently worsened) his hypertension.
If the examiner concludes that the Veteran's service-connected residuals of PTB did not cause, but aggravated, his hypertension, the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation by the residuals of PTB and the level of severity existing after the aggravation occurred.
3. COLON CANCER:
(a) Please identify whether the Veteran has or has ever had colon cancer. If so, please identify the evidence supporting that conclusion and describe any treatment the Veteran has undergone.
(b) If the answer to (a) is yes, please opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's colon cancer is related to his service?
(c) The examiner should also opine whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of PTB caused or aggravated (permanently worsened) his colon cancer.
If the examiner concludes that the Veteran's service-connected residuals of PTB did not cause, but aggravated, his colon cancer, the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation by the residuals of PTB and the level of severity existing after the aggravation occurred.
4. PROSTATE DISABILITY:
(a) Please identify (by clinical diagnosis) each prostate disability entity found and whether the Veteran has or ever had BPH.
(b) As to each diagnosed prostate disability, please opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability is related to the Veteran's service?
(c) The examiner should also opine whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of PTB caused or aggravated (permanently worsened) any prostate disability(ies) diagnosed.
If the examiner concludes that the Veteran's service-connected residuals of PTB did not cause, but aggravated, a prostate disability(ies), the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation by the residuals of PTB and the level of severity existing after the aggravation occurred.
The examiner must explain the rationale for all opinions provided.
3. Then the RO should readjudicate these matters. If any benefit remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).